Data Computer Services Pty Assessment Answer

Assignment Task:

Data Computer Services Pty Ltd v Barry French trading as Element Printing  
Thank you for your instructions to act on behalf of Data Computer Services Pty Ltd (“Data”) in your dispute with Barry French (“French”).  We confirm you have:  

• been authorized by a recent meeting of the Board of Data to instruct us on behalf of Data in this breach of contract matter  
• signed a costs agreement on behalf of Data, and provided us with $2,000 on account of costs and disbursements. We enclose our trust account receipt.  

 
Your instructions  At the meeting yesterday, you instructed us about the facts which led to this dispute.  We enclose a typed statement setting out your instructions. If it is a full and correct record of your instructions, please sign, date and return it to us at your earliest convenience. If you wish to amend this statement in any way, please telephone Mr. Hasson.  You have provided us with the following documents:  
a written quote from Data to French dated 22 [4 months ago]  
letter from French to Data dated 28 [4 months ago], and the standard contract between Data and French (“the contract”) dated 2 [3 months ago].  
 
Please advise us immediately if you believe that there are any other documents or evidence that are relevant to your claim, as their existence can affect our advice.  
Data’s claim  We confirm that Data is owed $132,525 (inclusive of GST) from the sale and installation by Data of a printer for French. 
 
Data’s claim is calculated as follows:  Contract price $147,250.00  Less deposit ($14,725.00) received by Data from French on 10 [3 months ago]  
Balance owing $132,525.00  We have carried out a business name search, which confirms that Barry French is trading as Element Printing and will, therefore, be the appropriate defendant in any litigation.  You have told us that the dealings between the parties were as follows:  

• On 23 [4 months ago], Data sent the written quote to French, offering to install the printer in accordance with the contract.  
• On 2 [3 months ago], Data received a letter of acceptance from French dated 29 [4 months ago], enclosing a copy of the contract which was signed by French but undated. 
• On 10 [3 months ago], Data received payment of the deposit by French.  
• On 18 [3 months ago], in accordance with clause 3 of the contract, Data's employees installed the printer at French’s offices.  

Since then, French has ignored all requests for payment of the balance owing.  
Possible defense You have advised us that French will raise an allegation that the printer supplied was not in working order. This may present a problem for Data's case as clause 4 of the contract states that Data would test the printer after installation. We need to confirm whether any testing was actually done by your employees.  French's remedies are limited under clause 6 of the contract – however, that only applies if the printer is defective “after installation and testing”. We will need to interview your employees, Evans, Adams and Brown, to confirm what testing was completed.  French may have difficulty claiming any losses arising after the date when you attempted to inspect the printer. This is because French had a duty to minimize his losses and we can argue that allowing inspection of the printer, would have led to a quick resolution of the problem and minimized his loss. In any case, it is unlikely that any losses for French resulting from the printer's alleged problems would be more than the balance owing.  
Prospects of success  Based on the facts you provided to us, Data has good prospects of successfully suing French for breaching his contract with Data. It will be our case that a contract was created either by the posting of the letter of acceptance by French (dated 29 [4 months ago]) or by the subsequent signing and dating of the contract by you on 2 [3 months ago]. Data performed its obligations under the contract by installing the printer. This performance gives rise to French’s obligations to pay. French is therefore liable for damages for the unpaid balance of the purchase price.  Our final advice, however, will depend upon the results of our further inquiries regarding the testing and performance of the printer. If the printer was not tested and is in fact defective, Data may have problems obtaining the balance owing. 
 
Court proceedings  If you decide to commence court proceedings, French has 28 days to file a defense after we serve him with the court documents. If he does not file a defense, then we will apply to the court for a judgment against him without the necessity of going to a hearing. If French does file a defense, then the matter will go to a hearing, which would probably be sometime within the next 12 months.  The District Court requires us to inform you that once proceedings are commenced, the court may dismiss actions if its orders are not complied with and may make costs orders against parties who fail to comply with its orders.  
Costs  The estimate of our costs is detailed in our costs and disclosure statement and costs agreement already provided to you.  In the event that Data is successful in its claim against French, then it will be entitled to claim a portion of its legal costs from French. This means that there will be a gap between the amount of legal costs that this matter will cost Data and the amount of legal costs that a court can order in Data’s favor against French.  If Data is unsuccessful in its claim against French, then Data would be liable to pay to French a portion of French’s legal costs for defending the matter, plus all costs incurred by us on Data’s behalf.  We note that legal proceedings are expensive and time-consuming and there is always the possibility that French may have insufficient assets to meet all or any judgment obtained again him. Please contact us if you wish to have additional information on alternative options to litigation. You may wish to consider mediation of this matter, especially as the court has the power to compel parties to attend mediation. We can assist you to evaluate all of your options.  
What happens next  You have already sent French a letter of demand, which has been ignored along with a number of other requests for payment. We note your instructions to send a formal letter of demand, requesting payment within 7 days and indicating that we will commence proceedings if payment is not made. We will advise you at the end of the 7 days if we receive any response from French.  In the meantime, please confirm the best time for us to contact Evans, Adams, and Brown for an interview to obtain further details of the installation and testing that was done.  If you have any queries, please do not hesitate to contact Mr. Hasson on (02) 9965 7068. 

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